Here is an example of a hearing where I examined the worker. The issue is a transfer of costs (workplace accidents, insurance)

1. Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle
Appeals Tribunal et de l’assurance contre les accidents du travail
505 University Avenue 7th
Floor 505, avenue University, 7e
étage
Toronto ON M5G 2P2 Toronto ON M5G 2P2
WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 16/10
BEFORE: T. Carroll : Vice-Chair
V. Phillips : Member Representative of Employers
D. Felice : Member Representative of Workers
HEARING: February 22, 2011 at Toronto
Oral
Post-hearing activity completed on March 30, 2011
DATE OF DECISION: June 3, 2011
NEUTRAL CITATION: 2011 ONWSIAT 1390
DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer decision dated March 29, 2009
APPEARANCES:
For the worker: Not applicable
For the employer K: Mr. R. Cronish, Lawyer
For the employer H: Ms. E. Reynolds, Lawyer
Interpreter: N/A

2. Decision No. 16/10
REASONS
(i) Issues
[1] The Panel has to determine whether K, a Schedule 1 employer, is entitled to have the
costs of a February 24, 2006 compensable accident transferred, in whole or in part, to another
Schedule 1 employer - H - pursuant to section 84 of the Workplace Safety and Insurance Act
(WSIA).
(ii) Background
[2] The facts contained in the Background Section of this decision are not in dispute.
[3] K is a Schedule 1 employer. It is a personnel agency that offers staffing solutions for
employers on temporary and long-term work placements.
[4] H is a Schedule 1 employer. It offers full waste diversion services for Municipalities and
the Commercial and Industrial sectors.
[5] G, the worker, was, at all material times, an employee of K. G had worked on various
job placements through K since November 2004. In February 2006 he worked with H on the
13th
, 17th
, and, from the 20th
to the 24th
.
[6] On February 24, 2006 the worker was assigned work with H. The worker’s job duties
included picking up waste materials contained, primarily, in blue boxes. H, through its
supervisors, provided the worker with a truck and his route assignments for that day. The worker
was to work with I, another K employee.
[7] G and I were assigned to a 2002 Mack LEG13 (the Mack). This vehicle was a side
loading waste compactor with dual controls capable of being driven from either side of the
passenger cab. I had a motor vehicle licence sufficient to drive the Mack but he had not received
specific instruction or training in regard to its operation.
[8] On February 24, 2006 I was the driver of the Mack and G was the loader. They were
working in a residential area. The work consisted of the vehicle stopping at each residence where
recyclables have been left out at the curb side. The loader exits the cab of the vehicle, picks up
the blue box, returns to the vehicle and sorts the material into different groups, places the
material in the appropriate compartment of the recycling truck body, returns the empty box to the
curb, enters the cab of the truck and the truck moves to the next stop.
[9] At approximately 11 a.m. the Mack compactor entered a residential cul-de-sac. As I
manoeuvred the vehicle to the curb, and, while the front wheels of the compactor were turned to
the right and moving, G exited the vehicle to pick up a blue box. While performing this
movement, G’s left foot was caught in the right tire of the compactor, and, as a result, he suffered
a serious leg injury.

3. Page: 2 Decision No. 16/10
[10] The Ministry of Labour - Health and Safety Division - investigated the accident and
determined that H had contravened sections 25(2)(a) and section 25 (2)(d) of the Occupational
Health and Safety Act (OHSA). K was charged with contravention of section 25(2)(d) of the
OHSA.
[11] H and K subsequently pled guilty to the charges. H was fined $65,000.00 and K
$22,500.00.
[12] In a decision of March 19, 2009, an Appeals Resolution Officer at the Workplace Safety
and Insurance Board (the Board) found that K was responsible for 100% of the costs of the
worker’s injuries.
(iii) The testimony of G
[13] G testified at the hearing. His testimony is repeated below.
The worker testified that he applied for work with K, a temporary work agency, and he had
performed truck driving and labouring jobs.
He stated that he received paper based training at K that included WHMIS and safety
testing. He had read K’s safety manual.
In February 2006 he was dispatched by K to perform work with H. He was to work as a
helper and was picked up by a co-worker I. He was advised by K that he would be
working outside for long hours and the job was dirty. When he arrived at H’s yard, he was
advised he would be a loader on a Mack truck.
There was no formal job or safety training provided by H. A full-time driver with H
explained that the job duties involved filling the side of the Mack truck and to keep paper,
glass and metals separate. He was also instructed to wear a safety vest. This instruction
took about one half hour.
He was not instructed on the proper procedure to enter and exit the truck.
He believed that K had knowledge of the jobs that he was assigned as it visits and oversees
job bidding.
K did not provide hands-on training in regard to recycling work. Training or instruction as
to assigned work duties was usually provided by the company you were sent to.
The worker testified that H usually requested a driver/loader (one person) to operate the
truck. However, he believed one of H’s drivers was not available and the operation of the
Mack compactor was assigned to two persons.
He had worked on the Mack truck previously with a driver from H.
The worker stated that he had never seen H’s training/safety policy documents. He
believed these were provided to full-time workers. He did not have any of the training
provided in these policy documents.
He was dispatched to his recycling routes by PB, a supervisor with H. PB told him who he
would be working with and he assigned the pick-up routes.

4. Page: 3 Decision No. 16/10
The worker testified that PB, and two other supervisors with H, had observed him
performing his work duties on the truck (over a four to five hour period) and there was no
complaint in regard to his performance.
The worker stated that, when working with I, it was their working procedure that he step
down from the Mack, to pick up a blue box, while it was moving. This was a time saver.
He had worked with H’s drivers in the past and they had encouraged him to step out when
the vehicle was moving.
The worker stated that stepping out of a moving compactor, prior to the next pickup, was
really part of the job and it was common practice among loaders.
On February 24, 2006 I pulled the truck into a cul-de-sac. The wheels were turned to the
right to compensate for the curve in the road. The vehicle was slowing, but still moving,
when he stepped out of the truck to pick up a blue box. His foot struck the wheel. He fell
and suffered a left ankle injury. There was no warning from I prior to the incident.
The worker, under cross-questioning, stated that he recognized that exiting the vehicle,
when the wheels were moving and turned to the right, was dangerous.
The worker stated that he had not read the decals in the cab of the truck that cautioned in
regard to entering and exiting the vehicle. He believed they were covered with dirt.
(iv) Law and policy
[14] The WSIB’s Operational Policy Manual (OPM), Document No. 14-05-01, speaks to
Transfer of Costs.
[15] The policy refers to section 84 of the Workplace Safety and Insurance Act (WSIA) and
states that, if the Board finds that an accident or disease to a Schedule 1 worker was caused by
the negligence of another Schedule 1 worker or employer, the Board may charge all or part of the
claim cost to the negligent employer’s cost record.
[16] The policy provides a definition of negligence as follows:
failing to do something which a reasonable and prudent person would do; or
doing something which a reasonable and prudent person would not do.
[17] A number of Tribunal cases have stated that, in Transfer of Costs cases, that the party
applying for a cost transfer must prove, on the balance of probabilities, that the second employer
was negligent (i.e., ordinary negligence) as provided under the common law - see Tribunal
Decision No. 2620/01.
[18] In Decision No. 276/92 a Tribunal Panel commented on the basic elements of negligence
that must be provided in a transfer of costs case:
1. a relationship between the parties creating a duty to exercise reasonable care;
2. a breach of that duty (to take reasonable care) generally based upon a standard of
what a reasonable person would do in these circumstances;
3. the party to whom the duty of care is owed, suffers damage which, in turn, is
causally linked to the breach of the duty of reasonable care;

5. Page: 4 Decision No. 16/10
4. ancillary to the causal connection is the requirement that any damage sustained by a
party not be considered "too remote" in law.
(v) The Panel’s analysis
[19] In considering the transfer of costs application, the Panel notes that both K and H were
Schedule 1 employers and G, the injured worker, was employed by K at the time of his injury on
February 24, 2006.
[20] The Panel, prior to reaching its ultimate conclusions, determined that it would accept the
testimony of G in its entirety as it was provided in a forthright manner and it was consistent with
the Case Record materials.
[21] In considering K’s appeal, the first question the Panel must answer is: did H owe a duty
of care to G?
[22] The Panel, after considering all the evidence and the circumstances surrounding the
February 2006 accident, determined that H owed a duty of care to the worker G. As noted
above, G was assigned to H to provide labour. When G entered H’s yard on February 24, 2006
the work environment was totally controlled by H. The worker was, at all material times, in the
care and control of H. H assigned the work and the worker’s work routes. H provided the Mack
truck that was used when the worker was performing his recycling duties. In these
circumstances, it is the Panel’s opinion that was the duty of H to provide a safe and secure
workplace for G and all workers in his position. This duty includes the proper training of G in
work assigned and provided to him. This is required under the OHSA.
[23] The second question the Panel must answer is: did H breach its duty of care to G based
upon a standard of what a reasonable person (company) would do in the circumstances?
[24] The Panel, in considering all the evidence, finds that H breached its duty of care to G. In
reaching this conclusion, the Panel took particular notice of the following:
1) H failed to provide G, and his driver I, with proper training in regard to the
operation of the Mack truck. G was essentially provided with instruction as to the
separation of various waste materials at the side of the vehicle. He was not
provided with instruction on how to carry out the job duties of a labourer on the
truck, and, in particular, how to properly exit and enter the vehicle.
The Panel, in assessing negligence, put significant weight on this failure to train.
The Panel noted that, in operating the Mack truck, there must be co-operation and
co-ordination between the driver and labourer especially when stopping the vehicle
- for the labourer to exit, or in moving the vehicle forward, - when the worker has
re-entered the truck and is in a stable position. Two untrained persons in the truck
constituted a significant risk factor for mishaps/accidents and injuries.
2) H’s training was not only insufficient but was inherently dangerous in practice. G
testified that he had worked as a labourer on waste material trucks in the past and
was encouraged by H’s drivers to exit the truck while moving as this sped up the
completion of the work. G also testified that he, and his co-worker I, continued
this practice and he would exit the vehicle while moving. G noted that several

6. Page: 5 Decision No. 16/10
supervisors of H observed him working over a considerable period of time.
However, he was not advised to discontinue the hazardous practice of exiting the
moving truck.
3) H’s failure to train G and I, in regard to the safety procedures and operation of the
Mack truck, was inconsistent with its own policies and procedures in that regard.
In a letter to the Ministry of Labour, dated February 27, 2006, PB, Acting
Operations Supervisor for H, after investigating G’s accident, states, in part:
[G] had exited the truck without it coming to a full stop. His left leg was caught
by the front right tire being turned in the outward position and going over his leg.
It has been the company’s policy and operating procedure that no one will exit
from any [H] vehicle unless it is completely stopped.
This is found in question number 7 of the [H’s] Rules and Regulations and
Training Requirements (see attached) and on page 13, number 1 of the [H’s]
Contractual Personnel Rules and Regulations and Training Requirements (see
attached).
This incident could have been avoided if the loader had waited for the truck to
come to complete stop.
Effective immediately [H]has put out a Policy Notice stating that all drivers and
loaders are reminded that the vehicle they are working on must come to a
complete stop before they exit the cab or step down from the rear step (see
attached).
It is worthwhile noting, as stated above, that full-time workers with H were made
aware, and provided with, H’s safety policies and related training as outlined in
PB’s letter. It is also worthwhile noting that H had had several accidents/injuries
prior to G’s accident involving workers exiting and entering similar waste
recycling vehicles. H, and its supervisors, knew, or ought to have known, about the
danger associated with placing untrained workers on the Mack truck.
[25] The Panel concludes, from the above three paragraphs, that H was aware of the hazards
associated with the operation of the Mack recycling truck. It failed to exercise reasonable care
(i.e., provide discipline/training). This failure was a breach of its duty to take reasonable care to
protect G from injury. This breach of the duty of care (negligence) resulted, to a significant
degree, in injury to the worker.
[26] In making this finding, it is also the Panel’s opinion that K was negligent and partly
responsible for the injuries to G.
[27] In reaching this conclusion, the Panel notes that there was an agreement between K and H
that K would have their workers read H’s safety policies and procedures prior to commencing
work with H. G testified that he had not read these policies prior to working as a labourer with H
in February 2006.
[28] G also testified that, immediately prior to exiting the Mack truck and suffering his leg
injury, he was aware that exiting the vehicle, with the wheels turned to the right and moving, was
a dangerous activity.

7. Page: 6 Decision No. 16/10
[29] Therefore, the Panel finds that G was partly responsible for his injury. However, the
Panel also considered the fact that a dangerous practice had previously been established between
G, and his driver I, that the worker would exit the vehicle while moving. H’s supervisors had
observed the worker but failed to caution the worker to discontinue the practice.
[30] H’s representative argued that there were warning decals contained within the cab of the
Mack truck that instructed a worker on the proper procedures in entering and exiting the Mack
truck. One warning decal called for a worker, when entering or exiting the vehicle, to keep three
limbs (2 hands and one foot or two feet and 1 hand) in firm contact with steps and hand holds.
The warning also advised that one should not jump from the vehicle.
[31] G testified that he had not read these small warning signs and the Panel accepts his
testimony. It is the Panel’s opinion that it was incumbent upon H to bring these warning to the
worker’s attention as part of his training. H failed to do this or discipline the worker when they
knew of his practice of exiting the truck while moving. Therefore, the Panel, in determining the
degree of negligence, did not place significant weight on the presence of these decals in the truck
cab.
[32] The Panel ultimately concludes, noting that H had control of the worker, the vehicles, and
the work environment at the time of the accident and had failed to implement its established
safety policies, that it should bear the majority of the costs of the worker’s injuries. The Panel
finds that H should bear 60% of the costs.
[33] K should bear 40% of the worker’s claim costs.

8. Page: 7 Decision No. 16/10
DISPOSITION
[34] K’s appeal is allowed, in part.
[35] H is responsible for 60% of the worker’s claim costs in regard to his left leg injury of
February 24, 2006.
[36] K is responsible for 40% of the worker’s claim costs in regard to the worker’s
February 24, 2006 leg injury.
DATED: June 3, 2011
SIGNED: T. Carroll, V. Phillips, D. Felice